DRAFTING SETTLEMENT AGREEMENTS IN LITIGATION First Run Broadcast: April 21, 2015 1:00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T. (60 minutes) A settlement in litigation – commercial, fiduciary, construction, or other – is only as good as the settlement agreement. The case may have stopped short of trial or stopped in the middle of trial as the parties realized that settlement was the best course of action, but preserving the informal agreement to settle places immense pressure on getting the underlying agreement right – not only settling the present dispute but preserving the settlement as things change over time. Understanding the law governing these agreements and carefully drafting their essential provisions – mutual releases, scope, any financial terms, non-disclosure, non-disparagement an many more – are essential to preserving the value of the settlement. This program will provide you with a draftsman’s guide to the essential provisions, traps and opportunities of litigation settlement agreements.

• Framework of law governing settlement agreements • Essential provisions of settlement agreements, including traps for the unwary • Defining scope of settlement and mutual releases – either to prevent resumption of

litigation or leave related litigation untouched • Economic terms (including potential tax impact), uses of escrow, and collection • Role of non-disclosure and non-disparagement provisions, violations and remedies. • Enhancing the enforceability and decreasing the costs of settlement agreements

Speaker:

Steven B. Malech is partner in the New York City office of Wiggin and Dana, LLP, where he is chair of the firm’s probate litigation practice group. He is represents beneficiaries, fiduciaries and creditors in disputes involving alleged violations of the Prudent Investor Act and its predecessors, alleged breaches of fiduciary duty, disputed accountings, and will contests. He represents clients in cutting edge probate litigation matters involving trusts and estates with assets in the hundreds of millions of dollars. Mr. Malech received his B.A., with special honors, from the University of Texas and his J.D. from the Connecticut School of Law.

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Drafting Settlement Agreements in Litigation Teleseminar

April 21, 2015 1:00PM – 2:00PM

1.0 MCLE GENERAL CREDITS

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NO REFUNDS AFTER April 14, 2015

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Please note: This form is for your records in the event you are audited Sponsor: Vermont Bar Association Date: April 21, 2015 Seminar Title: Drafting Settlement Agreements in Litigation

Location: Teleseminar - LIVE Credits: 1.0 MCLE General Credit Program Minutes: 60 General Luncheon addresses, business meetings, receptions are not to be included in the computation of credit. This form denotes full attendance. If you arrive late or leave prior to the program ending time, it is your responsibility to adjust CLE hours accordingly.

PROFESSIONAL EDUCATION BROADCAST NETWORK

Speaker Contact Information

DRAFTING SETTLEMENT AGREEMENTS IN LITIGATION

Steven B. MalechWiggin and Dana LLP – New York City(o) (212) 551-2633smalech@wiggin.com

Kevin S. BudgeWiggin and Dana LLP – New Haven, Connecticut(o) (203) 498-4378kbudge@wiggin.com

Robert LangerWiggin and Dana LLP – Hartford, Connecticut(o) (860) 297-3724rlanger@wiggin.com

Drafting SettlementAgreementsin Litigation

Presented By:

Steven B. Malech

Robert M. Langer

Kevin S. Budge

Professional Education Broadcast Network

April 21, 2015

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Overview

Governing Law

Traps for the Unwary

Unforeseen Consequences

Non-disclosure and Non-disparagementProvisions, Violations and Remedies

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Settlement Agreement or Stipulation = Contract

Needs to resolve a bona fide disputewith doubt as to the eventual result

Definite and complete with allmaterial terms

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Strong public policy in favor of enforcement

a. “avoids potentially costly, time consuming litigation”

b. “preserves scarce judicial resources; courts could not function if every

dispute devolved into a lawsuit”

c. “societal benefit in recognizing the autonomy of parties to shape their

own solution to a controversy”

d. “produces finality and repose upon which people can order their affairs”

e. “interests are advanced only if settlements are routinely enforced rather

than becoming gateways to litigation”

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PotentialChallenges

Lack of mutual assent

Lack of consideration “To constitute sufficientconsideration . . . a party needonly have a good-faith belief in themerit of its position”

Failure to follow certainstatutory requirements

CPLR § 2104: unless madebetween counsel in opencourt, only binding if in writingand reduced to an order andentered

“Open Court” before judgeand stenographer

Other contract defenses:collusion, duress, fraud, etc.

Type of dispute cannot besettled by parties

Will ConstructionProceeding

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Publicly Available

Multistate enforcement

Private class actions

Good Cause to Seal

Harm to a compelling interest of the movant

Confidentiality

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Is it possible?

Requesting copy of press releasein advance of public release

Attending Government’s PressConference

Negotiating Publicity

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CollateralEstoppel

Preventing the offensive use of

Finality Negotiating an effective release

5th

AmendmentVis a vis criminal and licensure proceedings

SOL Impact of suspension of statute of limitations

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Potential impact outside of what is contained in the writtenagreement

o Board Certification(s)

o Public record

Consider, negotiate and advise

Impact of Settlement Agreementbetween

Healthcare Providers&

The Department of Public Health

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Consideration for Confidentiality

Possible tax consequences

Amos v. Commissioner of Internal

Revenue – T.C. Memo 2003-239 (December 1,2003).

Possible alternatives

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Disparagement

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“A provision in a contract requiring one or more parties to theagreement not to make negative statements about the other(s).”

Nondisparagement Clause

Before Use: Confirm Legality

CA: ban on “contracts or proposed contracts for the sale or lease of

consumer goods or services” California Civil Code §1670.8.

Penalties: $2,500 for first violation;

$10,000 for willful, intentional or reckless violations.

Nolo’s Plain English Law Dictionary http://www.nolo.com/dictionary/nondisparagement-clause-term.html

Non-Disparagement: Evidence of Good Faith?

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Enforcement

Conclusory AllegationsInsufficient

Allege disparaging statements,to whom made and when

Case by Case analysis

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Steven B. Malech

212.551.2633

smalech@wiggin.com

Robert M. Langer

860.297.3724

rlanger@wiggin.com

Kevin S. Budge

203.498.4378

kbudge@wiggin.com

Contact Information

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This presentation is a summary of legal principles.

Nothing in this presentation constitutes legal advice, which can only be

obtained as a result of a personal consultation with an attorney.

The information published here is believed accurate at the time of

publication, but is subject to change and does not purport to be a

complete statement of all relevant issues.